O’Brien had to be named, says RTÉ

There would have been no point in RTÉ broadcasting a report which made anonymous businessman Denis O’Brien’s affairs relating to Irish Bank Resolution Corporation (IBRC), the High Court has heard.

It would be a boring report of the “Small Earthquake in Chile: Not many dead” type which essentially sucks the lifeblood out of the story, said David Holland SC, for RTÉ.

He was continuing his submissions in RTÉ’s opposition to an application from Mr O’Brien and IBRC for an injunction preventing a broadcast report which the businessman says will invade his privacy by revealing details of his personal and confidential banking affairs.

Mr Holland said freedom of the press is the lifeblood of democracy and for that to happen the blood “must actually flow”.

Counsel said there would be no point in RTÉ broadcasting a story like “some debtor sought an extension of his loan for a very long time”. Mr O’Brien’s side had said this story could have been run without naming the businessman.

Mr Holland said the courts should not be asked to make “editoral fine judgments” as to what was to be published.

What the O’Brien side was asking the court to play was a “game of journalistic Jenga” (a tower-building game) in which bits of information are pulled out in the hope the whole thing will collapse, counsel said.

A story is not the sum of its individual parts and the court should look at the story in the round if freedom of expression is to be vindicated. Mr Holland also criticised a part of one of Mr O’Brien’s affidavits, in which he said if the court did not grant the injunction, it would cause him and others to “review all arrangements” with Irish banks.

“No sovereign state or court should put up with that kind of threat,” Mr Holland said.

What Mr O’Brien does about his banking affairs, and whether he decides to locate them here or elsewhere is a matter for him but it had nothing to do with the court’s considerations and should be ignored.

Mr Holland also reiterated his argument made on Wednesday that Mr O’Brien was not a private but a public figure by virtue of his extensive business and media interests.

He also described as specious an argument by the O’Brien side that refusal to grant an injunction would make the businessman and others “fair game” for further disclosures by the media. He also rejected an O’Brien side claim that other banks would be unwilling to deal with him if this information was published.

He also said there was well-established law that prior restraint on publication, until the full hearing of the issue has taken place, can only be exercised by the courts in exceptional circumstances where it was clear the case would succeed at full trial. This was not one of those cases, he said.

Mr Holland has completed his submissions and today lawyers for Mr O’Brien and IBRC will reply. The latter has a separate but related case and is supporting the O’Brien application.

 

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